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$2.5M EPA Reporting Fine Vacated

Friday, March 27, 2015

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The world's top producer of chromium chemicals for coatings, preservatives and plating had no obligation to provide federal environmental officials with a 2002 industry report on the cancer risk of hexavalent chromium, a federal appellate panel has concluded.

Thus, the U.S. Environmental Appeals Board has thrown out $2,571,800 in fines that the U.S. Environmental Protection Agency imposed in November 2013 against Elementis Chromium Inc. (formerly Elementis Chromium LP), based in New Jersey.

HexChrom
CDC

Hexavalent chromium is commonly used in corrosion-resistant coatings, pigments and other industrial products and processes.

The 85-page appellate ruling, released March 15, ends a case that has dragged on for more than a decade.

Reporting Requirement

The 2013 decision by EPA Chief Administrative Law Judge Susan L. Biro had found that Elementis violated the 1976 Toxic Substances Control Act (TSCA) by "failing to immediately inform EPA's Administrator of substantial risk information it obtained on October 8, 2002. ..."

The 2002 report in question was Collaborative Cohort Mortality Study of Four Chromate Production Facilities, 1958-1998 – FINAL REPORT, an industry-funded study that echoed earlier findings by the EPA and others of increased risks for cancer from occupational exposure to hexavalent chromium.

The corrosion-resistant compounds are frequently used in protective coatings, solvents, electroplating and other industrial activities and products.

HexChrom
CDC

A industry-funded study of chromium workers found many of the same risks as earlier studies but associated them with much higher levels of occupational exposure.

TSCA's Section 8(e) requires chemical makers "to immediately inform EPA" of any new information "which reasonably supports the conclusion" that a chemical in its supply chain "presents a substantial risk of injury to health or the environment."

'Adequately Informed'

Elementis's $203.8 million chromium business is the world's leading producer of chromium products, which are used in a wide variety of applications, including protective and industrial coatings, preservatives and pigments.

The company appealed Biro's ruling and fine, contending that by the time the industry had its report, EPA already had the same findings from its own and other studies.

Elementis believed "EPA was adequately informed of the information described therein, or at least was aware of information indicating an increased risk of cancer among certain workers with high levels of exposure in chromium processing plants, and that [Elementis] had actual knowledge that EPA was so informed," the 2013 ruling said.

The company also contended that any violation had long since passed the statute of limitations.

What's Reportable

The appellate panel rejected the statute-of-limitations argument but sided squarely with the manufacturer on whether the report had to have been submitted in the first place.

Elementis
Elementis Inc.

Elementis, a leading producer of chromium compounds, ramped up its coatings investment in 2014 with a new acrylic thickener facility in New Martinsville, WV.

Under EPA's guidance documents, the agency considers itself adequately informed of information that corroborates "well-established adverse effects" of a chemical, the appellate panel noted.

Reportable new information would be a finding, for example, of a higher risk at the same exposure level or a previously unknown risk at a lower threshhold, the panel said.

2 Studies

The 2002 epidemiology study, commissioned in 1998 by an industry trade group that includes Elementis, examined worker risk from inhalation exposure to chromium during manufacturing.

The industry had ordered the study because the Occupational Safety and Health Administration (OSHA) was considering reducing exposure limits on chromium in the workplace.

Indeed, EPA was conducting a similar study on chromium workers at the same time, and the agency finished its study first.

The EPA study, conducted in 2000, corroborated earlier studies of chromium workers, finding a positive association between cumulative hexavalent chromium exposure and lung cancer.

CDC_Hexchrom
CDC

The U.S. Centers for Disease Control and Prevention detailed Criteria for a Recommended Standard [on] Occupational Exposure to Hexavalent Chromium in 2013.

Two years later, the industry study reached the same conclusion, with one difference: The cancer-associated exposures in the industry study were 20 times higher than those reported by EPA.

(The U.S. Centers for Disease Control and Prevention detailed its Criteria for a Recommended Standard [on] Occupational Exposure to Hexavalent Chromium in 2013.)

Asked and Answered

Elementis reviewed the industry study but did not deem it worth passing on to EPA, because the new report showed no greater risks than EPA had found two years earlier. Nor did Elementis send its study to OSHA, although it did participate in OSHA's rulemaking proceedings on hexavalent chromium between 2002 and 2006.

ChemicalPlantWorker
©iStock.com / endopack

Chemical makers are required to inform the EPA immediately of new information about risks presented by chemicals they use. A federal appellate panel said that a 2002 industry-funded study did not provide new information about hexavalent chromium and need not have been disclosed.

EPA learned of the industry's chromium study in 2006 from a newspaper account and subpoenaed a copy, which Elementis provided.

The EPA challenge, ALJ ruling, fine and appeal all followed.

In its ruling this month, the appellate panel found that EPA had erred and that the industry study need not have been reported "as information corroborative of a well-established adverse effect."

   

Tagged categories: Corrosion resistance; Health & Safety; Health and safety; Hexavalent chromium; North America; Pigments; Protective Coatings

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